[2024] UGHCCRD 60

**THE REPUBLIC OF UGANDA**

**IN THE HIGH COURT OF UGANDA AT KAMPALA**

**(CRIMINAL DIVISION)**

**CRIMINAL REVISION NO. 74 OF 2024**

**(**Arising from Chief Magistrates’ Court of Makindye at Makindye in Criminal Case No. 2070 of 2023**)**

**ATEGEKA INNOCENT::::::::::::::::::::::::::::::::::::::APPLICANT**

**VERSUS**

**UGANDA::::::::::****:::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT**

**RULING**

**BY HON JUSTICE GADENYA PAUL WOLIMBWA**

**Introduction**

The applicant brought this application by way of a Notice of Motion under ***Article 28 (3) (g)*** of the ***Constitution of the Republic of Uganda, 1995***, ***Sections 48 & 50*** of the ***Criminal Procedure Code Act***, ***Section 72*** of the ***Trial on Indictment Act***, and ***Section 17(1)*** of the ***Judicature Act***.

The applicant seeks to move this Honorable Court to call for and examine the record of proceedings in Makindye Criminal Case No. 2070 of 2023 pending at the Chief Magistrates Court of Makindye for purposes of examining the propriety of the Ruling and Orders recorded and passed by the trial court 12/03/2024 be revised with the following orders;

1. That the Learned Trial Magistrate acted in the exercise of his jurisdiction illegally or with material irregularity or injustice when he denied the applicant’s lawyers the opportunity to recall the prosecution witnesses for cross-examination, hence occasioning a substantial miscarriage of justice. 2. Costs of the application be provided for.

The Applicant swore an affidavit in support of the application. The salient points of the affidavit are:

1. That on the 5th day of July 2023, he was arrested and later produced before the Chief Magistrate's Court at Makindye and charged with the offence of Theft contrary to sections 254 (1) and 261 of the Penal Code Act Cap. 120. 2. He was remanded to prison but was later released on bail. 3. That on the 12th day of December 2023 His Worship Arinaitwe Elisha directed that the matter proceeds with hearing in the absence of his lawyers and before disclosure. 4. That at the hearing, the first prosecution witness made a sworn statement in the absence of his lawyers, and he was then requested to cross examine her which he did. 5. That later on the 16th day of January 2024 his lawyers obtained the disclosure documents and also requested for certified copies of record of proceedings to be able to re-cross examine the first prosecution witness. 6. That on the 12th day of March 2024, his lawyers made a prayer requesting to recall the first prosecution witness for re-cross examination and the Learned Trial Magistrate denied the prayer. 7. That the Learned Trial Magistrate acted in the exercise of his jurisdiction illegally or with material irregularity or injustice when he denied his lawyers the opportunity to recall the first prosecution witness for purposes of re-cross examination. 8. That he believes the refusal to recall the first prosecution witness for re-cross examination has the effect of leading to a miscarriage. 9. That it is fair and in the interest of justice that the Ruing / Order of the Learned Trial Magistrate be revised and set aside.

The Respondent did not file any affidavit in reply opposing the application despite being served with the application.

**Brief facts**

On November 7th, 2023, the applicant was brought before the Chief Magistrate's Court at Makindye and charged with theft contrary to sections 254 (1) and 261 of the Penal Code Act, Cap 128. Subsequently, he was granted bail after being remanded.

On December 12th, 2023, the trial magistrate proceeded with hearing the first prosecution witness in the absence of the applicant's lawyers. The applicant cross-examined the witness himself. Later, the applicant’s lawyers requested the court's permission to re-cross-examine the first prosecution witness, but on March 12th, 2024, the Learned Trial Magistrate denied the request. Therefore, this application is for revision before this court.

**Representation**

M/s Lukwago & Co. Advocates represented the applicant, while Ms Apolot Joy Christine, Senior State Attorney, represented the Respondent.

**Issues:**

1. Whether or not this is a proper application for revision? 2. Whether the Learned Trial Magistrate acted in the exercise of his jurisdiction illegally or with material irregularity or injustice when he denied the applicant’s lawyers the opportunity to recall the prosecution witnesses for cross examination? 3. What are the remedies available?

**Submissions of counsel for the applicant**

Counsel for the applicant submitted that the applicant’s lawyers made a prayer to the trial court requesting to recall P. W.1, Roswitha Schleyer, to cross-examine her, and the Learned Trial Magistrate, in her ruling, declined to give them the opportunity of recalling her. He further submitted that the accused has no duty to prove his innocence by cross-examination and that failure to cross-examine leads to the inference that the evidence is accepted as being true. He cited the Supreme Court case of ***James Sawoabiri & Another v Uganda S. C. Criminal Appeal No. 5 of 1990,*** where the court held that.

***The witnesses called for the prosecution shall be subject to cross-examination by the accused person or his or her advocate and to re-examination by the advocate for the prosecution.***

He also cited ***Article 28 (3) (g) of the Constitution of the Republic of Uganda, 1995,*** which states that.

***Every person who is charged with a criminal offence shall be afforded facilities to examine witnesses and to obtain the attendance of other witnesses before the court.***

Learned counsel also cited the case ***Sula Kato V. Uganda (2001) UGSC 3****,* where the Supreme Court noted that all trials of cases are subject to the provisions of ***Article 28 of the Constitution of the Republic of Uganda, 1995***, which is fair hearing.

He submitted that failure by the applicant’s lawyers to recall PWI Roswitha Schleyer to be cross-examined will lead to a miscarriage of justice since the Applicant will not have the opportunity to controvert PWI Roswitha Schreyer’s evidence.

He further relied on the case of ***James Sawoabiri & Another v Uganda S. C. Criminal Appeal No. 5 of 1990***, which noted that.

***We are of the view that as the Appellants were unprepared to cross-examine the prosecution witnesses, the refusal to recall the witnesses at the request of defence Counsel was a violation of their constitutional right of fair hearing.***

Counsel submitted in conclusion that there is a glaring defect in the procedure or a manifest error in law, which threatens to result in a flagrant miscarriage of justice and therefore pray that the ruling/order of the Learned Trial Magistrate of the Chief Magistrate's Court of Makindye at Makindye be revised and set aside and allow the applicant’s Lawyer's to recall the prosecution witness for cross-examination.

**Submissions of counsel for the respondent**

Counsel for the respondent opposed the application in her submissions. She acknowledges that the gist of the application is that the magistrate refused to grant an order for defence counsel to recall PW1. She conceded with the applicant's affidavit in paragraph 7 that on 12/03/2024, the applicant's lawyers made a prayer requesting to recall PW1 to cross-examine her. Still, the trial magistrate refused to allow them to recall PWI.

It was her submission that the proceedings of the lower court which have been called for do not contain any material error material to the merits of the case, nor do they involve a miscarriage of justice to warrant the High Court to make revision orders as the applicant seeks from this court. She relied on ***Section 100*** *of the* ***Magistrates Court Act, Cap. 19, which*** provides for the power to summon material witnesses or examine a person present.

***Any magistrate's court may, at any stage of any trial or other proceeding under this Act, summon or call any person as a witness, or examine any person in attendance though not summoned as a witness, or recall and re-examine any person already examined, and the court shall summon and examine or recall and re-examine any such person if that person's evidence appears to it essential to the just decision of the case; but the prosecutor or the advocate for the prosecution or the defendant or his or her advocate shall have the right to cross-examine any such person, and the court shall adjourn the case for such time, if any, as it thinks necessary to enable that cross-examination to be adequately prepared if, in its opinion, either party may be prejudiced by the calling of any such person as a witness."***

Counsel submitted that the recalling of witnesses for re-examination could only be done by the trial magistrate at any stage of the case and is at the discretion of the magistrate and that the law does not provide that the accused and prosecution have a right to recall a witness as this power is vested only with the court as per ***Section 100*** *of the* ***Magistrates Court Act, Cap. 19.*** Counsel noted that counsel for the accused did not have a right under the above act to make prayers for recall of the witness for purposes of cross-examination when the court had not made orders to recall the witness to re-examine her and that the power to recall witnesses is power that is vested only with court.

In her final submission, counsel stated that the application was misconstrued, misplaced and had no legal basis and prayed that it be dismissed. The file will be remitted back to the lower to proceed with the Criminal Case No. 2070/2023 hearing.

**Rejoinder by the applicant**

This court asked the applicant to file submissions in rejoinder by 05/07/2024. By the close of business on 05/07/2024 and at the time of writing this ruling, the court record shows that no rejoinder had been filed.

**Consideration of the application by the court**

I have considered the lower court's record, the arguments presented by both parties, and the relevant laws and authorities referenced in the case. I have also considered additional applicable authorities that were not cited.

It is important to note that despite the applicant’s and respondent's reliance on older laws in their arguments, I will analyze the case using the 7th Revised Editions of the Laws of Uganda, which came into effect on July 1, 2024.

I will address each of the three issues separately and in the order, they were presented.

**Is this case amenable to revision?**

The Criminal Procedure Code Act, Cap. 122 does not provide a specific definition of the term "revision." However, according to the Black’s Law Dictionary, 9th Edition by Bryan and Garner, revision is defined as a re-examination or a careful review for correctness, or an altered version of work. Revision involves the High Court re-examining the record or orders made by the lower court to ensure that the proceedings or orders made by the lower courts are proper, correct, regular, or legal.

The power of revision is derived from the High Court's general and supervisory powers in Section 17(1) of the Judicature Act, Cap. 16. ***Section 17 of the Judicature Act, Cap. 16. The section provides as follows:***

*The High Court shall exercise general powers of supervision over Magistrates’ courts.*

The main objective of the above section is ensured that Magistrates Courts administer justice in accordance with the law through technical guidance by the High Court.

Sections 48 and 50 of the Criminal Procedure Code Act, Cap. 122, provide for this Court's revisionary powers.

***Section 48*** of the ***Criminal Procedure Code Act, Cap. 122*** provides that;

*The High Court may call for and examine the record of any criminal proceedings before any magistrate’s court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of the magistrate’s court.*

***Section 50 (1)*** of the ***Criminal Procedure Code Act, Cap. 122*** provides that;

*In the case of any proceedings in a magistrate’s court, the record of which has been called for or which has been reported for orders, or which otherwise comes to its knowledge, when it appears that in those proceedings an error material to the merits of any case or involving a miscarriage of justice has occurred, the High Court may;*

*a) In the case of a conviction, exercise any of the powers conferred on it as a court of appeal by sections 34 and 41 and may enhance the sentence;*

*b) In the case of any other order other than an order of acquittal, alter or reverse the order.*

Further, ***Section 50 (5) of the Criminal Procedure Code Act, Cap. 122,*** which is the more specific provision for this revision, allows any person aggrieved by any finding or order made by the magistrate’s court to petition the High Court to revise it.

***Section 50 (5)*** of the ***Criminal Procedure Code Act, Cap. 122***;

*Any person aggrieved by any finding, sentence or order made or imposed by a magistrate’s court may petition the High Court to exercise its powers of revision under this section; but no such petition shall be entertained where the petitioner could have appealed against the finding, sentence or order and has not appealed.*

The law allows the High Court to review criminal proceedings from the Magistrate Court. According to Section 50(5) of the Criminal Procedure Code Act, revision is permitted in cases where an individual is aggrieved by a court's finding, sentence, or order. However, for the High Court to intervene, the court must have decided that significantly affects the applicant's legal rights. Allowing open revision of decisions by the High Court could hinder the functioning of Magistrates Courts. (See ***Uganda versus Nkalubo, Court of Appeal Criminal Appeal No.130 of 2021***).

I have carefully reviewed the lower court file and found a decision dated March 12, 2024, by the Magistrate Grade I am denying the applicant’s request to recall the complainant for re-cross examination by the applicant’s counsel. The decision made by the Trial Magistrate affects the applicant’s right to a fair trial as protected in Article 28(3)(d) of the Constitution. In my opinion, the applicant's grievance is fundamental and, therefore, merits the court’s intervention under section 50(5) of the Criminal Procedure Code Act.

**Whether the Learned Trial Magistrate acted in the exercise of his jurisdiction illegally or with material irregularity or injustice when he denied the applicant’s lawyers the opportunity to recall the prosecution witnesses for cross examination?**

I have carefully reviewed the pleadings and submissions on record and will now address whether denying the applicant’s lawyers the chance to recall the prosecution witnesses for cross-examination led to a significant miscarriage of justice.

The lower court record indicates that the trial began on 11/07/2023, with Counsel Nahabwe Precious representing the applicant. The case was adjourned to 26/07/2023, and on that date, the applicant was represented by both Counsel Nahabwe Precious and Counsel Matovu Musa. Both counsels appeared for the accused on 31/07/2023. On 04/09/2023, Counsel Matovu Musa appeared for the applicant. On 02/10/2023, Counsel Nalwoga Miriam appeared, holding brief for Counsel Matovu Musa.

The court record does not show any representation for the applicant on 18/10/2023, 15/11/2023, 07/12/2023, and 12/12/2023. There is no record of what happened to the applicant’s counsel, and the hearing proceeded without legal representation for the applicant. The record is silent as to whether the Learned Trial Magistrate inquired from the applicant why they didn’t have legal representation, even though counsel always represented him. The court record is also silent as to whether the applicant was allowed to engage in alternative legal representation without counsel. Then, on 14/02/2024, Counsel Nalwoga Miriam and Counsel Musiime Edna appeared for the applicant; on 26/03/2024, 21/05/2024, and 18/04/2024, Counsel Nalwoga Miriam again appeared.

The above record shows that the applicant was represented by counsel on many court sessions. Even on 12/03/2024, when the order subject to this application was made, the applicant was still represented by counsel and continued to be represented by counsel in subsequent court hearings. This indicates that the appellant intended to be represented by counsel at all times, despite the few court sessions when counsel did not represent him.

***Article 28 of the Constitution of the Republic of Uganda, 1995,*** provides the right to fair hearing in civil and criminal cases, including the right to legal representation. The right is constitutionally guaranteed as non-derogable under Article 44 of the Constitution. Article 28 states:

*‘‘1) "In the determination of civil rights and obligations or any criminal charge, a person shall be entitled to a fair, speedy and public hearing before an independent and impartial court or tribunal established by law.*

*2)...*

*(3) Every person who is charged with a criminal offence shall-*

*(a) ……..;*

*(c) ……..;*

*(d) be permitted to appear before the court in person, at that person’s own expense, by a lawyer of his or her choice.*

In ***Caroline Turyatemba and Others Vs Attorney General and others, Constitutional Petition N0. 15 of 2006,*** in which the court held.

*The right to be heard is a fundamental basic right. It is one of the cornerstones of the whole concept of a fair and impartial trial. The principle of “Hear the other side”, or in Latin: “Audi Alteram Partem”, is fundamental and far-reaching. It encompasses every aspect of fair procedure and the whole area of the due process of the law. It is as old as creation itself, for even in the Garden of Eden, the Lord first afforded a hearing to Adam and Eve, as to why they had eaten the forbidden fruit, before he pronounced them guilty: See R V University of Cambridge [1723] 1 Str. 557 (Fortescue J.) This principle is now of universal application. Article 10 of the Universal Declaration of Human Rights, 1948, Article 6 (1) of the European Convention on Human Rights and Fundamental Freedoms, 1950, and section 2 (2) of the Canadian Bill of Rights, as well as Article 7 (1) (c) of the African Charter on Human and Peoples’ Rights, all provide for this right****.***

I recognise the importance of ensuring a fair hearing, even when someone chooses to represent themselves without legal counsel. However, in this case, the applicant had the right to be represented by the counsel of his choice in the lower court proceedings. This was evident from the notice of instructions on the lower court record, which showed that the applicant was represented by M/S Lukwago & Co. Advocates jointly with M/S Elgon Advocates.

The record indicates that the applicant was not represented by their counsel during the hearing of the first prosecution witness. However, there is no evidence that the applicant chose to represent themselves or engage alternative counsel. The court did not ask the applicant to explain the whereabouts of his counsel or whether he had chosen to represent themselves. The Applicant did not do himself any good service by informing the court on the right to be represented. But as is the usual practice in court, the court had an obligation to ask the applicant about the status of his legal representation. It is evident that the applicant's right to legal representation was denied during the cross-examination of the first prosecution witness.

In the case of Charles Twagira v Uganda Supreme Court Criminal Appeal No. 27 of 2003, it was emphasized that the right to legal representation and cross-examination are fundamental aspects of a fair trial under Article 28 of the Constitution. In determining whether the Applicant’s right to a fair trial was denied, it is sufficient to lay out the events of the lower court on 12/03/2024 when the court issued the order mentioned in this application.

***‘‘12/3/2024***

***Accused present***

***Ms. Hope Mutoni for state***

***Ms. Edna Musime for accused***

***Complainant in court***

***State: Matter for further prosecution. We did not interview the witness***

***Ms. Musime: We had prayed to cross examine the first witness which prayer was not granted.***

***Court: This prayer was not responded to.***

***Ms. Musime: Accused was unrepresented at the time of cross examination. We pray that we re-cross examine. Counsel did not attend; he had another matter in court.***

***State: We pray that her prayer is denied, accused took plea and was represented and has been represented throughout. He has been represented by Musa Matovu.***

***The complainant has always been coming to court. The negligence of defence counsel court prejudice my client.***

***On that day, accused did not give a reason why his lawyers were absent. This making mockery of court to keep going back at the whims of counsel who don't attend court. This is not a case for mandatory representation, accused could still ask questions.***

***We pray that court denies their prayers if they don't appear, court continues with hearing.***

***Ms Musime in rejoinder: The 2 counsel who are Nahabwe and Musa Matovu left the firm and file had not been re-allocated to another lawyer. Counsel had been attending court until that day. Accused left out vital information which will and the courts to come up for a just conclusion.***

***Court: The court does not know the inner workings of Ms. Lukwago &Co. Advocates. Nevertheless, at one point, counsel Musime stated that counsel in personal conduct had a matter in another court. And now she has stated that the two counsel are no longer working with the firm. These are two contradicting positions.***

***The court cannot ascertain the truth here, these issues were never addresses at the hearing, it is wrong to keep taking the court fourth and back on issues already completed that must be expedited in order to answer real issues. Counsel has also not cited for us the law which permits court to recall the witness to the stand.***

***This prayer is rejected, and PW I remains discharged. Counsel should always take instructions seriously.***

***Signed***

***Arinaitwe Elisha***

***Magistrate Grade One***

***12.03.2024’’***

During the court proceedings, the applicant's lawyer requested to re-cross examine the complainant because the applicant was not represented in court. The lawyer explained that they were not in court on the day the complainant testified because they were engaged in another case. Counsel also told court that the previous lawyers representing the applicant had left the firm, leaving the case file unassigned to a new lawyer. The applicant’s lawyer also stated that the applicant omitted to ask important questions necessary for the court to reach a fair decision, which they wanted to do so to enable the court to reach a just decision. However, the Learned Trial Magistrate declined the applicant’s request, emphasizing that the applicant's counsel should prioritize the real issues for determination in the case.

It is important to note that the Trial Magistrate was concerned about the timely resolution of the case, as it had taken more than six months in court. According to Article 126(2)(b) of the Constitution, courts are directed to hear cases expeditiously and ensure the right to a fair trial.

Counsel had requested the court to recall the complainant for re-cross examination for several reasons. First, when the complainant testified, the counsel for the Applicant did not attend court due to engagements in another court. Second, the applicant had not been able to effectively cross-examine the complainant as a layperson and had left out material questions. Third, counsel pointed out that the prosecution had disclosed information well after the trial had started, disadvantaging the defence. The three points raised by the Applicant were necessary for the proper determination of the case as they were fully within the normative content of the right to a fair trial.

The Trial Magistrate partly addressed these issues but did not address whether the mistakes and failure of counsel should be visited on the applicant and whether there were sufficient reasons to warrant the recall of the complainant for re-cross examination (in particular whether the applicant effectively cross-examined the complainant given that the prosecution had not fully disclosed its case to the defence at the time of the hearing). It was important for the court to address these issues as they are fundamental to the right to a fair trial.

As stated in Banco Arabe Espanol Vs Bank of Uganda, mistakes or negligence by counsel should not negatively impact the litigant. The court should have considered the applicant's counsel's absence and allowed the re-examination of the witness in the interest of fairness to the accused. Similarly, the court should have exercised its discretion to recall the complainant for re-cross examination, especially given the late disclosure by the prosecution. Additionally, the court should not have been in a rush to address the real issues because the real issues, in this case, rotate around the testimony of the complainant, and it was therefore important that the applicant is given a chance through effective cross-examination to challenge the evidence against him.

In conclusion, the court did not fully grant the applicant the benefit of the right to a fair trial, which constituted a material irregularity in denying the applicant's motion to cross-examine the complainant. As a result, the court is directed to recall the complainant for re-cross-examination.

**Decision**

This application is allowed with the following orders:

1. The order of the Learned Trial Magistrate dated 12/03/2024 in Makindye in Criminal Case No. 2070 of 2023 denying the applicant’s lawyers the opportunity to recall the first prosecution witness for cross-examination is hereby set aside. 2. The first prosecution witness (P. W1) in Makindye in Criminal Case No. 2070 2023 is hereby re-called for cross-examination by the applicant’s lawyers. 3. The file is referred back to the Trial Court so that the trial can proceed speedily and fairly, as the Constitution guarantees.

I so order.

Gadenya Paul Wolimbwa

**JUDGE**

19th July 2024